“The CISG, the European Court of Justice and the Search for Legal Uniformity”

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Vivian Grosswald. Curran
conference paper description
First, there are inevitable problems of judicial interpretation itself within each national legal system regardless of the source of the governing legal authority, such that, even within a given legal system, legal uniformity remains an unrealized ideal rather than an achievable practice. Second, tensions often exist between what judges may perceive to be an objective interpretation of the CISG text, and what they consider fairness and justice to require in a pending case. Third, problems surround the mythology that the CISG is a single text, when in fact in all of its versions it is a translated text, published in more than one official and unofficial language translations, with both intentional and unintentional substantive disparities appearing in its different language versions (Flechtner, J. Law & Comm.). Fourth, differences in legal traditions, cultures and practices are such that concepts of legal phenomena as basic as “trials” and “contracts” fail to denote the same concepts in different languages, despite the ease with which a translator may pick an allegedly equivalent word in a different language. Fifth, differences abound in what are considered primary and secondary sources of legal authority. These differences are particularly vivid between civil-law and common-law legal systems.